these amendments the „European arrest warrant“ was implemented into the

Czech legal order, in conformity with the Framework Decision of the

Council of the European Union, No. 2002/584/JHA of 13 June 2002, on the

European arrest warrant and the surrender procedures between Member

States.

3. The petitioners

drew attention to the fact that initially, when the Government of the

Czech Republic submitted the draft bills including the above-mentioned

amendments, it proposed that Art. 14 of the Charter be amended at the

same time by the inclusion of a fifth paragraph, which would have read:

„Citizens can be surrendered to Member States of the European Union for

the purpose of criminal prosecution or of serving a custodial sentence,

if such results from those of the Czech Republic’s obligations as a

European Union Member State which cannot be restricted or excluded.“

The proposed amendment to the Charter was rejected by the Chamber of

Deputies on 2 April 2004. Afterwards the mentioned amendments to the

Criminal Code and the Criminal Procedure Code were adopted by the

Chamber of Deputies, even over the veto of the President of the

Republic, who had urged their unconstitutionality.

4.

According to the contested provisions, citizens of the Czech Republic

can be surrendered to a foreign state (that is, to a European Union

Member State) for the purpose of their criminal prosecution, which

follows from the exhaustively enumerated grounds impeding the surrender

of a requested person, listed in § 411 par. 6 lit. a) to e) of the

Criminal Procedure Code. These grounds do not include as a ground for

the refusal of the surrender of a person the fact that she is a Czech

citizen. The fact that a Czech citizen can be handed over to another EU

Member State follows not only from § 21 par. 2 of the Criminal Code and

§ 403 par. 2 of the Criminal Procedure Code, but also, albeit

indirectly, from § 411 par. 6 lit. e) and par. 7 of the Criminal

Procedure Code. These provisions represent a certain exception from the

obligation to hand over a citizen to another EU Member State. However,

by means of an argument a contrario, it also follows from these

provisions that the court shall always grant a request for the surrender

of a requested Czech citizen in the case that she should be surrendered

to another Member State for the purpose of criminal prosecution.

5.

The designated provisions are thus in conflict with Art. 14 par. 4 of

the Charter, according to which no citizen may be forced to leave his

homeland. The prohibition laid down in this article of the Charter is

clear and unconditional. The right of citizens not to be forced to

leave their homeland is a fundamental right which, in the sense of Art. 1

of the Charter is inherent, inalienable, illimitable, and not subject

to repeal. Thus, not even citizens themselves can give up or waive this

right in any way. The Charter does not allow for this fundamental

right to be restricted by statute. The Explanatory Report to the Draft

Amendment to the Charter, rejected by the Chamber of Deputies of

Parliament on 2 April 2004, as was stated above, was also in agreement

with this position. The petitioners make reference to the fact that the

Government of the Czech Republic, as the subject initiating the

amendments to the Criminal Code and the Criminal Procedure Code, changed

its arguments after the proposed amendment to the Charter was

rejected. Only as of April, 2004 did the Government start to argue that

an amendment to the Charter is not necessary, as the submitted draft

amendments to both criminal codes are not in any way in conflict with

it.

6. In the petitioners’

view, forcing a citizen to leave his homeland, in the sense of Art. 14

par. 4 of the Charter, is from the context analogous in nature to

expulsion abroad in the sense of par. 5 of the same Article. In both

cases, it occurs without the consent of the affected person. Moreover,

the consequence of such an encroachment by the state is to hinder

citizens’ entry into the territory of the Czech state, which is a

further right of citizens expressly recognized in the Charter (Art. 14

par. 4, first sentence, of the Charter). In the petitioners’ view, it

is necessary also to use an “argumentum a minori ad maius”. If the

Charter forbids forcing citizens to leave their homeland, by which can

be understood at the very least indirect forcing (indirect compulsion),

all the more does it forbid the surrender of a citizen, which

constitutes forcing by direct means, that is, by means of compelled

restriction on liberty in the form of taking him into surrender custody

and the subsequent surrender to the organs of an EU Member State.. . . .

III.Conditions for the Petitioners’ Standing

40.

The petition which is before the Constitutional Court was submitted by a

group of forty-seven deputies of the Chamber of Deputies of the Czech

Parliament and a group of twenty-one senators, thus it satisfies the

conditions contained in § 64 par. 1 lit. b) Act on Constitutional

Court. The petitioners have thus fulfilled the conditions to have

standing.. . . .

V.The Wording of the Contested Provisions of the Criminal Code and the Criminal Procedure Code

43.

The provision of § 21 par. 2 of the Criminal Code (Act No. 140/1961

Coll., as amended) proposed to be annulled reads: „Citizens of the Czech

Republic may be surrendered to another Member State of the European

Union solely on the basis of a European arrest warrant.“

44. The provisions of the Criminal Procedure Code (Act No. 141/1961 Coll., as amended) proposed to be annulled, read as follows:

§ 403 par. 2: „The Czech Republic may surrender its own citizens to

other Member States of the European Union only on the condition of

reciprocity.“

§ 411 par. 6 lit.

e) (regulating one of the situations in which a court shall refuse to

surrender the requested person): “this person is a citizen of the Czech

Republic or has permanent residence status in the Czech Republic, whose

surrender is requested to execute a custodial sentence, or to undergo

protective treatment or protective education, and before the competent

court he declares for the record that he refuses to submit to the

execution of this sentence or to the protective measures in the

requesting state; such a declaration cannot be withdrawn.”

§

411 par. 7: „Where a person surrendered to a requesting state for

criminal prosecution is a citizen of the Czech Republic or a person

having permanent residence status in the Czech Republic, the court shall

make the surrender conditional on that person being returned to the

Czech Republic to serve his custodial sentence of imprisonment, or to

undergo protective treatment or protective education, if such a sentence

or if protective measures are imposed upon that person and, following

the judgment in the requesting state, he does not give his consent to

serving the sentence or undergoing the protective measures in the

requesting state. The court should proceed in this manner only in cases

that the requesting state provides an assurance that the person will

turned back over to the Czech Republic to serve the sentence of

imprisonment or to undergo protective measures. If the requesting state

does not provide this assurance, then the court shall refuse to

surrender the requested person.”

45.

§ 412 par. 2 (which is substantively related to par. 1 of the same

provision, enumerating the types of conduct for which Czech courts do

not ascertain their criminality under the law of the Czech Republic):„Conduct under paragraph 1 is understood to mean a) participation in a criminal organization, b) terrorism, c) trafficking in human beings, d) sexual exploitation of children and child pornography, e) illicit trafficking in narcotic drugs a psychotropic substances, f) illicit trafficking in weapons, munitions and explosives, g) corruption,

h) fraud, including that affecting the financial interests of the

European Communities within the meaning of the Convention of 26 July

1995 on the protection of the European Communities’ financial interests, i) laundering of the proceeds of crime, j) counterfeiting currency, k) computer-related crimes,l)environmental crime, including illicit trafficking in endangered animal and plant species and in their varieties, m) aiding in unauthorized border crossing and in unauthorized residence, n) murder, grievous bodily injury, o) illicit trade in human organs and tissues, p) kidnapping, restriction on personal freedom, and hostage-taking, q) racism and xenophobia, r) organized or armed robbery, s) illicit trafficking in cultural goods, including antiques and works of art,t) fraudulent conduct, u) extortion and the exaction of protection money, v) counterfeiting and piracy of products, w) forgery of public documents and trafficking therein, x) forgery of means of payment,z) illicit trafficking in nuclear or radioactive materials,y) illicit trafficking in hormonal substances and other growth promoters, aa) trafficking in stolen vehicles, bb) rape, cc) arson, dd) crimes over which the International Criminal Court has jurisdiction to prosecute and punish, ee) hijacking of aircraft or sea vessels, ff) sabotage.“

VI.Classical Extradition and the Surrender of Persons among the Member States of the EU on the Basis of the European arrest warrant

46.

According to criminal law doctrine, extradition is understood as the

rendition/turning over of a person by a state on whose territory that

person is found to another state at the latter’s request for the purpose

of criminal prosecution or the carrying out of punishment. The

objective of extradition is to prevent the perpetrator of a criminal

offense from escaping criminal prosecution or the carrying out of

punishment by fleeing to another state. The duty of the state of

residence to render/extradite the perpetrator generally arises from a

treaty (extradition treaty, treaty on legal assistance in criminal

matters, etc.). Extradition itself is based on a large number of

principles, among which are included, for example, the principles of

reciprocity, of dual criminality, of the impermissibility for a state to

extradite its own citizens, of the impermissibility of extraditing in

respect of a designated category of criminal offenses, and of

specialty. Criminal law theory draws a distinction between substantive

and formal extradition law. Substantive extradition law refers to the

totality of conditions under which the duty to extradite a perpetrator

arises under international law. Formal extradition law then governs the

special proceeding before bodies of the requested state, which results

in a decision either to surrender or not to surrender the perpetrator,